A phrase we are hearing a great deal these days by those who demand religious exemptions from anti-discrimination laws is “sincerely held religious beliefs.” The argument goes like this: it is tyranny for the government to force business owners to serve all customers in cases where doing so would violate their “sincerely held religious beliefs.” But they almost always use this argument only for laws banning discrimination on the basis of sexual orientation, not any of the other prohibited bases for discrimination. But this requires ignoring identical arguments made against those protections in the past.
Shannon Gilreath of the Wake Forest University Law School points out in an Illinois Law Review article that this very same argument was made against the passage of the Civil Rights Act in 1964.
In opposition to the Civil Rights Act of 1964, Senator Robert Byrd read Genesis 9:18–27 (Noah’s curse of the descendants of Ham) into the Congressional Record.21 In Loving, the Virginia trial judge offered an explicitly religious rationale for upholding Virginia’s antimiscegenation law. The slaveholders of history and the
segregationists of today make no distinctions between their biblically based religious beliefs and the systems of subordination they seek to institutionalize as part and parcel of and in the name of those same religious beliefs… Readers would instantly rebel at the idea of a county clerk being able to refuse a marriage license to a Black and white couple, as she suggests clerks should be able to do on moral grounds when faced with a Gay couple. But we are not having this conversation because, as Professor Wilson demonstrates, Gays and Lesbians remain the last group against whom it is permissible to discriminate openly and then call that discrimination “religion.”…
The truth is that the law has dealt with religiously motivated discrimination — as rationalization or sincere belief— before. Certainly, this was true with race. Despite staunch opposition to integration on religious grounds, the Civil Rights Act of 1964 contained no broad religious exemptions…
Professor Wilson’s preferred analogy — preferred over race — of abortion, is an analogy to which gender is undeniably central. But women have fared just as poorly at the hands of religionists. Women have been as much the chattel property of men, first of their fathers and then of their husbands, as Blacks have been the property of whites. The Fourteenth Amendment was argued not to apply to women, with Congressman Thaddeus Stevens pointedly declaring that “[w]hen a distinction is made between two married people or two femmes sole, then it is unequallegislation; but where all of the same class are dealt with in the same way then there is no pretense of inequality.” In another context, that of suffrage and Section 2 of the Fourteenth Amendment, Senator Howard explained that by “the law of nature . . . women and children were not regarded as the equals of men.” The prevailing cultural attitude regarding women was neatly summed up by the North Carolina Supreme Court, which held that a woman did not have grounds for divorce when her husband had disciplined her by horse-whipping her. The court, citing Genesis 3:16, “Thy desire shall be to thy husband, and he shall rule over thee,” declared that being beaten in this way was not cause for divorce as a matter of law. Even as Black men received the right to vote, women were still denied it. The rape of women by their husbands went unrecognized because women were to become “one flesh” with their husbands. Women have been denied employment because of patriarchal attitudes reinforced through religion and, as to abortion particularly, they have been denied reproductive control largely by effective campaigns organized by religious idealogues.
Professor Wilson argues that it is permissible for businesses and even state employees to discriminate against Gays on religious conscience grounds. I think it is fair to ask her whether there should have been similar religious conscience exceptions to Title VII for those who do not wish to hire or otherwise accommodate women. Why have we drawn the line at Gays? Whatever the answer to this query, claiming, as Wilson does, that Gays are the target of an especial religious animus justifying their subjection to especially discriminatory treatment is, as a matter of history, simply untrue.
Throughout our history, “sincerely held religious beliefs” have been used to justify all manner of discrimination. They were used to justify denying women and black people the right to vote, to maintain legal segregation, to argue that businesses should be allowed to refuse service on the basis of race and gender. Millions and millions of people sincerely believed that their religion demanded such discrimination and made it sinful to serve or hire black people, women or those of other religions. Today, very few people would accept that this is a legitimate basis for discrimination, much less that the anti-discrimination laws that forbid such actions destroy the religious liberty of those who hold such beliefs but are legally prevented from carrying them out.
What we have here is a case of special pleading. Those making this argument will not apply it consistently, they will apply it only to the current prejudice that they hold.